Maryland Attorney General Opinion 98 OAG 136

136] [98 Op. Att’y

COMMERCIAL LAW

LIQUEFIED PETROLEUM GAS CONTAINERS – POTENTIAL

CRIMINAL LIABILITY OF SUPPLIERS THAT REMOVE

COMPETITOR’S TANK

November 21, 2013

The Honorable Edward D.E. Rollins, III

State’s Attorney for Cecil County

The Maryland Liquefied Petroleum Gas Container Law makes

it a misdemeanor, among other things, to “take,” “or otherwise use,

dispose of, or traffic in” a liquefied petroleum gas (“LPG”) storage

tank marked as belonging to another without the written consent of

the owner. Md. Code Ann., Comm. Law (“CL”) §§ 11-603, 11-604,

11-606 (2013 Repl. Vol.); see generally CL §§ 11-601 et seq. You

ask whether an LPG supplier may be prosecuted under the Container

Law for acts committed in the course of replacing another

company’s underground LPG tank on the customer’s property with

its own tank, presumably with the consent of the

customer. Specifically, you ask whether the supplier can be charged

under the Container Law for leaving the other company’s partly-

filled LPG tank by the side of the road without the other company’s

written consent.

In our opinion, it would be problematic to charge the supplier

for violating the Container Law when the supplier has excavated the

tank and left it on the customer’s property. Conversely, we think it

would be possible to prosecute the supplier under the Container Law

when the supplier, without the other company’s written consent, has

left the other company’s tank in the road itself or “by the side of the

road” in a place beyond the control of both the customer and the

other company. Whether to prosecute the supplier in a particular

case will thus depend on where the new supplier left the tank, and on

other factors such as the customer’s role in the supplier’s actions, the

customer’s contractual obligations to the first supplier, and the

notice, if any, given to the first company.

The Container Law, however, is not the only option for

prosecuting an LPG supplier for leaving another company’s partly-

filled propane tank by the side of a public road. Although other

statutes are not the focus of this opinion, criminal actions might be

brought under § 3-204(a) of the Criminal Law Article for reckless

endangerment, or under the Public Safety Article for the knowing

violation of the State Fire Prevention Commission’s regulations,

Gen. 136] 137

see Md. Code Ann., Pub. Safety (“PS”) § 6-601 (2011 Repl. Vol.),

or for using equipment in a way that “endangers life or property due

to the hazards of fire or explosion.” Id. § 6-317(a)(1). The theft

provisions in the Criminal Law Article might also apply, as might

other laws ranging from local littering and nuisance ordinances to

federal regulations on the safe transport of LPGs.

I

Background

A Liquefied Petroleum Gas

“Liquefied petroleum gas,” also known as “LP-gas” or “LPG,”

is a catch-all term for a mix of several hydrocarbons (including

propane and butane) stored under pressure sufficient to convert the

gas into a liquid. It is often referred to simply as “propane” or

“bottled gas.” NIOSH Pocket Guide to Chemical Hazards,

http://www.cdc.gov/niosh/npg/npgd0679.html (last visited Nov. 12,

2013). First used for cooking and domestic heating purposes in

1912, LPGs began to be widely marketed in the 1930s. See

generally National LP-Gas Council, The First Fifty years of LP-

Gas: An Industry Chronology (1962), http://www.npga.org/files/

public/LPGA_Times_1962_History.pdf (“First Fifty Years”). By

1950, the trade association’s history reports, “LP-gas was truly big

business.” Id. at Ch. 7, 19.

As the use of LPG spread, so too did the recognition of its

risks. By 1953, it was “well-known” that LPG had the “tendency to

escape and become an element not only entailing possible but

probable death and disaster.” Thompson v. Econ. Hydro Gas Co.,

363 Mo. 1115, 1124 (1953). Today, the National Oceanic and

Atmospheric Administration (“NOAA”) includes the following

warning on datasheets used, among other things, to guide emergency

responders:

EXTREMELY FLAMMABLE. Will be easily

ignited by heat, sparks or flames. Will form

explosive mixtures with air. Vapors from

liquefied gas are initially heavier than air and

spread along ground. . . . Vapors may travel to

source of ignition and flash back. Cylinders

exposed to fire may vent and release

flammable gas through pressure relief devices.

Containers may explode when heated.

Ruptured cylinders may rocket.

138] [98 Op. Att’y

NOAA, Computer-Aided Management of Emergency Operations

Database, Liquefied Petroleum Gas, http://cameochemicals.noaa.gov/

chemical/987 (last visited Nov. 12, 2013). In addition to the fire

hazard it presents, spilled LPG can freeze skin on contact; NOAA

advises responders to “[w]ear appropriate personal protective

clothing to prevent skin from becoming frozen from contact with the

liquid or from contact with vessels containing the liquid.” Id.

Efforts to control the risks of LPG emerged with the fuel’s

growth in popularity. In 1932, the National Board of Fire

Underwriters—now the National Fire Protection Association

(“NFPA”)—issued model codes for handling LPGs, including

“Pamphlet 58,” which was entitled “A Liquefied Petroleum Gas

Code.” See NFPA 58, Liquefied Petroleum Gas Code at 1 (2014

ed.), available at https://www.nfpa.org/codes-and-standards/

document-information-pages?mode=code&code=58 (listing the

revisions to the NFPA LP-gas standards since 1932); see also Allied

Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 495-96

(1988) (describing NFPA Code). Now known as “Code 58” or

“NFPA 58,” the current model code contains 100 pages of model

regulations organized into twelve categories of standards for the

“storage, handling, transportation, and use of LP-Gases.” See NFPA

58, § 1.1, at 58-7. The NFPA has incorporated NFPA 58 into NFPA

1: Fire Code (“Code 1”), which is a compendium of the various

NFPA codes and many other fire safety standards. Code 1, § 2.2, at

1-25 (2012 ed.), available at http://www.nfpa.org/codes-and-

standards/document-information-pages?mode=code&code=1.

As of 2007, all fifty states had adopted NFPA 58 in some form.

See National Propane Gas Ass’n, Current State Adoptions of NFPA

58, http://www.npga.org/files/ public/NFPA_58_State_Adoptions_

2-07.pdf (last visited Nov. 12, 2013). Maryland has adopted NFPA

58 through regulations promulgated by the Maryland State Fire

Prevention Commission. Under a Maryland law first enacted in

1964, see 1964 Md. Laws, ch. 46, § 1, the Fire Commission must

“adopt comprehensive regulations as a State Fire Prevention Code”

in order to “protect life and property from the hazards of fire and

explosion.” PS § 6-206(a)(i); 2005 Md. Laws, ch. 5, § 2

(recodifying the statute). The Fire Code, the statute stipulates, must

“comply with standard safe practice as embodied in widely

recognized standards of good practice for fire prevention and fire

protection.” PS § 6-206(a)(ii). The Fire Code promulgated by the

Fire Commission incorporates most of NFPA Code 1, including the

portion that in turn incorporates NFPA Code 58. See COMAR

29.06.01.06 (incorporating NFPA Code 1 (2012 ed.) by reference);

Gen. 136] 139

NFPA Code 1, §§ 2.1, 2.2 (incorporating NFPA 58, Liquefied

Petroleum Gas Code, by reference).

NFPA 58 is now the industry standard. As one court has

observed, “Propane is relatively safe if it is handled in accordance

with these regulations. It is when the precautions prescribed by

NFPA 58 are not taken that handling propane becomes extremely

dangerous.” Apodaca v. AAA Gas Co., 134 N.M. 77, 88-89 (N.M.

Ct. App. 2003).

B. The Provision of LPG Storage Tanks for Residential Use

In part due to the risks involved with the storage and handling

of LPGs, gas companies typically maintain control over the tanks

used to supply LPG to residential customers. As we understand it,

most contracts between a residential customer and an LPG supplier

specify that the supplier will install its own tank and related

equipment on the customer’s property and will deliver the LPG to

that tank. The customer leases the tank and pays for the product,

usually when delivered, but in some cases on the basis of metered

usage. A contract might also require the customer to give the

supplier advance notice of the customer’s intention to terminate the

service, to provide the supplier with unlimited access to the

equipment, and to allow access to the equipment only to the

supplier. See, e.g., Amerigas, Terms and Conditions for Residential

Customers, §§ 11, 8, 7, http://www.amerigas.com/residential/pay

billing_terms.htm (last visited Nov. 12, 2013). The customer’s duty

to safeguard the tank thus depends on the contract, as does the exact

nature of the customer’s possessory interest in the leased tank.

The duty that one supplier owes to another is governed not by

contract but by industry practice. As a matter of courtesy, a supplier

who is about to take over a customer’s account and install its own

tank will often arrange with the current supplier for the disposition

of the first supplier’s tank. It is our understanding that gas

companies handle these transitions in different ways. The two

suppliers may coordinate to remove the old tank and install the new

one at the same time, with the old supplier hauling its tank to its

facility. Or, the new supplier may perform the excavation itself and

haul the old tank back to its own facility and make subsequent

arrangements for the old supplier to collect its tank. Finally, the two

competitors may sometimes effect a “steel swap,” by which the new

supplier assumes ownership of the buried tank and gives the old

supplier a substitute tank. None of these alternatives is prescribed

by law.

140] [98 Op. Att’y

C. The LPG Container Law

Although Maryland law does not regulate expressly the

transition from one residential LPG supplier to another, it does

protect each company’s ownership rights in its tanks. The Container

Law, which was originally enacted in 1968, see 1968 Md. Laws, ch.

533, applies to any container with a total capacity of over five

gallons that bears the mark of the company that owns it and restricts

the use of that tank by any other entity:

§ 11–603.

Unless he is authorized by the owner in

writing, a person other than the owner of a

container may not:

(1) Fill or refill a marked container with

liquefied petroleum gas or any other gas or

compound;

(2) Buy, sell, offer for sale, give, take, loan,

deliver, permit to be delivered, or otherwise

use, dispose of, or traffic in a marked

container; or

(3) Deface, erase, obliterate, cover up, or

otherwise remove or conceal any mark on a

container.

§ 11–604.

Unless taken with the written consent of the

owner, each of the following actions by any

person, other than the person whose mark is on

the container, is presumptive evidence of a

violation of this subtitle:

(1) Use of a marked container;

(2) Possession of a marked container; or

(3) Purchase of a marked container for:

(i) The sale of liquefied petroleum gas; or

(ii) The filling or refilling of the container

with liquefied petroleum gas.

§ 11–606.

Any person who violates any provision of this

subtitle is guilty of a misdemeanor and on

conviction is subject to a fine not exceeding

Gen. 136] 141

$300 or imprisonment not exceeding 90 days

or both.

The statute defines a “marked” container as one that “bears on its

surface in plainly legible characters the mark of its owner.” CL

§ 11-601(e). A “mark” “includes any name, initial, or device.” Id.

§ 11-601(d). An “owner” is “(1) Any person who holds a written

bill of sale under which title or ownership to a container was

transferred to him; or (2) Any manufacturer of a container who has

not transferred ownership of the container under a written bill of

sale.” Id. § 11-601(f).

There are no reported cases interpreting Maryland’s Container

law, and not much legislative history. Originally enacted as part of

the former Article 27 (“Crimes”), see 1968 Md. Laws, ch. 533, the

Container Law was moved to Title 11 of the Commercial Law

Article in 1975, without substantial change, as part of the Code

revision process. See 1975 Md. Laws, ch. 49, § 1.1 The Commission

to Revise the Annotated Code explained, “Title 11 contains statutes

generally intended to regulate trade and commerce in a relatively

broad sense.” Commission Report No. 175-1 to the General

Assembly of Maryland (Jan. 10, 1975), at 8 (addressing the

codification of various provisions into Article 11, Title 11, as

proposed by 1975 House Bill 26). The Container Law remains in

the Commercial Law Article under the title “Trade Regulation,”

without reference to the statutes codified in the Public Safety Article

that authorize the State Fire Commission to regulate the use,

handling, and placement of LPG containers.

The National Propane Gas Association (“NPGA”) reports that

at least 42 states had adopted container laws or regulations as of

2012. NPGA, Propane Container Filling Laws, Regulations and

Standards: The Safety Reasons Supporting Accountability at 6

(March 2010, rev. Jan. 2012), available at http://www. npga.org/

files/NPGA%20Container%20Law%20White%20Paper%20

(Jan%202012)(1).pdf (last visited Nov. 19, 2013). Like Maryland’s

container law, the restrictions enacted in other states typically

prohibit anyone other than the owner of a tank from (a) filling the

tank; (b) taking, using, or disposing of the tank, or (c) defacing the

1

The General Assembly also amended the Container Law in 1975 to

adopt a standard definition of “person” throughout much of the

Commercial Law Article. 1975 Md. Laws, ch.49, § 3.

142] [98 Op. Att’y

mark on the tank. See, e.g., Va. Code Ann. § 18.2-494 (2013); Del.

Code Ann. tit. 16, § 7202 (2013); Minn. Stat. § 299F.40 (2013).

Of the three actions prohibited by such laws, the “ownership

filling” requirements have proven to be the most controversial.

Although industry representatives emphasize the safety benefits of

ownership filling requirements, Propane Container Filling Laws at

2-3, some states have questioned whether such requirements

principally serve as restraints on trade that “prevent[] consumers

from choosing their propane suppliers.” Connecticut’s Regulation

of Propane, Legislative Program Review and Investigation at 21

(2011), available at http://www.cga.ct.gov/pri/docs/2011/

Connecticut_Regulation_ of_Propane_Final_Report.PDF); see also

Op. Utah Atty. Gen., No. 90-27 (March 5, 1991) (concluding that

Utah’s ownership filling requirement constitutes a “restraint of

trade” in violation of state and federal antitrust laws and is

preempted by federal antitrust law).2 By contrast, the prohibition on

non-owners taking, using, or disposing of another company’s tank—

about which you inquire—has not achieved the same notoriety,

perhaps because such prohibitions often do little more than re-state

generally applicable theft laws.

D. The Facts Posited Here

In the situation you posit, a residential LPG customer has

decided to contract with a new supplier for the provision of LPG gas

2

The NPGA reports that the Utah Attorney General’s opinion was

subsequently “overturned” by a decision of the U.S. District Court for the

District of Utah in a declaratory judgment action. Propane Container

Filling Laws at 2 (citing Suburban Propane Div. of Quantum Chem.

Corp., et al. vs. D. Douglas Bodrero and R. Paul Van Dam, Civ. Case No.

91-C-382G (D. Utah April 15, 1992)). The Attorney General’s opinion

nevertheless prompted the NFPA to delete the ownership filling

requirement from the 1992 version of its model code and replace it with a

provision allowing LPG tanks to be filled by “qualified persons.”

Propane Container Filling Laws at 2; see NFPA 58, § 7.2.2.1. In 1998,

the committee responsible for revisions to the LPG portions of the model

code approved an amendment restoring the ownership filling requirement

only to have its decision reversed by the NFPA Standards Council, which

is responsible for “the entire standards-making process and all the codes

and standards.” NFPA 58: LP-Gas Code Handbook, Comment to

§ 7.2.2.2 (2011 ed.). Although Maryland’s Container Law continues to

include an ownership filling requirement, see CL § 11-603, the tank-

removal issues you raise do not require us to address the potential antitrust

implications of that requirement.

Gen. 136] 143

and an underground tank to contain it. The new supplier has

excavated the former company’s underground storage tank from the

customer’s property in order to install the supplier’s own tank.

Neither the customer nor the new supplier has informed the other

company in advance, let alone obtained that company’s written

consent to any conduct regarding its tank. The new supplier then

places the former supplier’s tank “by the side of a road with LP gas

still inside.” We have been told that new suppliers have left disused

underground tanks in various places, sometimes on the customer’s

property, sometimes in the street in front of the property, and

sometimes elsewhere entirely. We have no information on the role

played by the customer in these events, but we assume that the

customer has at least consented to the supplier’s excavation and

removal of the first company’s tank from its position underground.3

II

Analysis

A. The Excavation and Movement of an LPG Tank from the

Customer’s Property, Depending on Other Facts, May Form

the Basis of a Criminal Prosecution

The Container Law makes it a misdemeanor to, among other

things, (1) “take, . . . deliver, permit to be delivered, or otherwise

use, [or] dispose of” (2) a marked LPG container that (3) has a

capacity of over five liquid gallons, (4) without the written

authorization of the container’s owner. See CL §§ 11-602, 11-

603(2). The defendant’s “use” or “possession” of the marked

container is presumptive evidence of a violation of the statute. Id.

§ 11-604. We understand your inquiry to be directed primarily at

whether the first element, which consists of the acts set forth in CL

§ 11-603(2), would be met by proof that the new supplier placed the

first company’s tank by the side of the road.

The only acts proscribed by CL § 11-603(2) that might apply

here are the “taking” or “disposing of” the container.4 The statute

3

We have not analyzed, as beyond the scope of the inquiry, the

potential culpability of the customer under the Container Law or the

supplier as an accessory to violations by the customer.

4

Your letter does not suggest that the supplier has “sold,”

“delivered,” “used,” “filled,” or committed any other of the prohibited acts

with regard to the container.

144] [98 Op. Att’y

does not define either term, so we will first look for their meanings

within the larger context of the statutory scheme in which they

appear. See, e.g., Lockshin v. Semsker, 412 Md. 257, 276 (2010). In

that context, one indication of what the General Assembly intended

by the terms “take” and “dispose of” may be found in CL § 11-605,

which sets forth the remedies available to the owner of a tank that

has been handled in a manner that violates the Container Law. In

such cases, the owner may obtain a warrant against any person who

“has violated any provision of [the Container Law]” to require him

“to be brought into court for the purpose of discovering and

obtaining the container.” CL § 11-605(a). If, as posited by your

request, the new supplier has simply left the LPG tank “by the side

of the road” in front of the customer’s house, it seems unlikely that

the owner would require judicial intervention to “discover[] and

obtain[]” it. Rather, the relief available by statute suggests that the

General Assembly may have envisioned violations that involved

some type of spiriting away of the tank.

But a civil remedy available to an owner of a missing tank does

not necessarily limit the meaning of terms that could also form the

basis of a criminal prosecution for other types of offending conduct.

The remedy, we think, does not limit the law.5 So we continue our

search for legislative intent by considering the way in which the

General Assembly has used the terms “take” and “dispose of” in

other statutes, see, e.g., TransCare Maryland, Inc. v. Murray, 431

Md. 225, 249 (2013) (looking to “other parts of the Maryland Code”

for the typical use of the terms in question), and to their meanings in

1968, when the law was enacted, see Chow v. State, 393 Md. 431,

448 (2006) (analyzing a term “in light of the definitions in effect at

the time of the legislative enactment”).

1. “Dispose Of”

The most likely offense suggested by the new supplier’s

movement of the other company’s LPG tank to the side of the road

is the offense of “disposing” of the tank without the owner’s written

authorization. When, as here, the term has been used in a statute

along with words such as “sell” or “give,” we have construed it to

5

We note that the Revisor’s Note accompanying amendments to the

Container Law in 1975 “question[ed] whether retention of [§ 11-605],

with the specific and unique procedures established by it, is necessary in

light of the general procedures which normally apply to actions of this

sort.” 1975 Md. Laws, ch. 49, § 3. Given that the section may not have

been necessary, we are reluctant to view it as a substantive limit on the

scope of the Container Law as a whole.

Gen. 136] 145

capture a broad array of ways in which one might transfer

property. In 1970, construing a statute regulating the disposition of

confiscated firearms, we concluded that the term “disposal” included

various methods of disposition, including destruction:

“Disposal” is defined as sale, pledge, giving

away, using, consumption, or any other

disposition of a thing. See Black’s Law

Dictionary. The same source defines the term

“dispose of” as “to exercise finally, in any

manner, one’s power of control over; to pass

into the control of someone else; to alienate,

relinquish, part with, or get rid of; to put out of

the way; to finish with; to bargain away”. See

also 12(A), Words and Phrases, 492, which

clearly acquaints disposal with action to get rid

of property in some manner.

55 Opinions of the Attorney General 313, 315-16 (1970); see also

58 Opinions of the Attorney General 808, 811 (1973) (concluding

that the phrase “or otherwise dispose of,” used in a statute applicable

to any person who “shall barter or sell or otherwise dispose of, or

shall offer for sale any goods,” was “clearly broad enough” to

include the consignment of the goods for sale by someone else).

Construing the term “disposal” in a 1969 contract, the Court of

Appeals similarly turned to a “common dictionary meaning” of the

term: “the ‘sale, pledge, giving away, use, consumption or any other

disposition of a thing.’” Harford County v. Town of Bel Air, 348

Md. 363, 385 (1998) (quoting Black’s Law Dictionary at 557 (4th

ed., 1951)). The term has long been used as a catch-all for various

types of transfers of property; in 1858, for example, the Court,

discussing a law restricting the sale of liquor, explained that the

Legislature used words other than “sell”—“such as ‘dispose of’ or

‘give’”—to prevent transfers of alcohol by other methods. See

Franklin v. State, 12 Md. 236, 247-48 (1858).

Here, a supplier who has removed the tank from the customer’s

land and deposited it out in the street has likely “g[otten] rid of” it,

55 Opinions of the Attorney General at 315, and thus “disposed of”

it within the Black’s Law Dictionary definition quoted above.

However, a supplier who has excavated another company’s tank and

left it on the customer’s land, even “by the side of the road,”

146] [98 Op. Att’y

probably has not “disposed of” the tank, because the tank has

remained in the actual possession of the customer6 and remains the

property of the company that owns it—no one has “gotten rid of” it.

Your ability to allege that a tank was actually “disposed of” thus

would likely depend on what the supplier did with the tank after

excavating it.

2. “Take”

The next possibility is that the supplier “takes” an LPG tank

within the meaning of CL § 11-603 when the supplier excavates it

and moves it to a different location, either on or off the customer’s

property. We did not find any reported cases on the term as used in

either Maryland’s Container Law or similar container laws in other

states. However, given that the General Assembly originally

included the Container Law within the same Article as the Code’s

criminal offenses, see Art. 27, §§ 355A-355G (1967 Repl. Vol.,

1968 Supp.), the use of “taking” in the context of larceny cases from

that period may suggest what the 1968 General Assembly

understood the term to mean.7

As explained by the Court of Special Appeals in one such case

from the time, “taking” is a crime against lawful possession,

regardless of ownership:

“[T]aking” refers to the taking of possession

from possession of one entitled thereto. Thus

it must be a trespassory taking and trespass

6

The customer, if not a lessee in possession of the tank, likely at least

possesses the tank as a bailee, i.e., a person to whom the tank owner has

entrusted the tank for a particular purpose. Bailees are deemed to have

temporary “possession” of the bailed goods. See, e.g., Jones v. State, 304

Md. 216, 219 (1985) (stating that the bailment of a car to the defendant for

repair involved a transfer of possession).

7

The Container Law was enacted before the theft crimes were

gathered into the Consolidated Theft Statute, which the General Assembly

enacted in 1978 to “eliminate technical and absurd distinctions” between

different offenses, and to address the “plethora of special provisions” that

those distinctions had engendered. Jones v. State, 303 Md. 323, 328

(1985) (quoting Joint Committee on Theft Related Offenses, Report on

Revision of Maryland Theft and Bad Check Laws at 19 (1978)). Because

“take” now falls within the statutory definition of “deprive” in the theft

statute, see Md. Code Ann., Crim. Law (“CR”) § 7-101(c) (2012 Repl.

Vol.), we have looked to the pre-consolidation cases for the General

Assembly’s probable understanding of the word in 1968.

Gen. 136] 147

against possession is the matrix of the common

law larceny concept. There has been a constant

judicial struggle to ascertain who has

possession because an accused cannot, in legal

contemplation, trespass against a person’s

property, if that person does not have

possession. In general, the taking of

possession from another is always a trespass

unless with the consent of the other.

Farlow v. State, 9 Md. App. 515, 517 (1970) (citations and footnote

omitted). In Robinson v. State, 17 Md. App. 451, 458-59 (1973), for

example, the court stated that the defendant could not be convicted

for the larceny of a rental car without proof of a trespassory taking

from the rental customer, because the customer had been the person

in possession on the day the car was taken. Here, because the

customer—rather than the former supplier—is in possession of the

tank, there could be some doubt as to whether a new supplier who

has removed a tank with the consent of the customer has “taken” it

within the plain meaning of the term as construed by courts when

the Container Law was enacted.8

But allowing the consent of the customer, as the party in

possession, to determine the legality of the new supplier’s removal

of the tank—as the reasoning of Farlow and Robinson suggests—

would present its own interpretive difficulties. The plain language

of CL § 11-603 prohibits the “tak[ing]” of a tank without the written

consent of the owner, not the customer. Given that we are to

construe statutes in such a way as to give effect to every term used

by the General Assembly, see Mayor of Oakland v. Mayor of Mt.

Lake Park, 392 Md. 301, 327 (2006), we do not believe that a

definition of “taking” in Maryland larceny jurisprudence serves as a

useful guide for how we are to interpret the term “take” as used in

the Container Law. Under the plain language of the statute, the fact

that a customer has permitted the removal or relocation of the tank

would not seem to be relevant.

8

We emphasize that we are discussing the crime of theft as it existed

in 1968. The “new and broader crime of theft” embodied in the

Consolidated Theft Statute after 1978 “‘no longer makes necessary[] what

once were the trespassing, taking and carrying away elements of common

law larceny.’” In re: Antoinette, 200 Md. App. 341, 348-49 (2011)

(quoting Moylan, Maryland’s Consolidated Theft Law and Unauthorized

Use § 4.2 at 24 (MICPEL, 2001)).

148] [98 Op. Att’y

Other aspects of Maryland’s larceny jurisprudence, however,

seem more directly applicable and weigh against interpreting the

word “take” to require the removal of the tank from the customer’s

property. The Container Law proscribes the “tak[ing]” of an LPG

tank, not its “carrying away.” The two terms are understood to be

distinct from one another, see, e.g., Harris v. State, 353 Md. 596,

615 n.12 (1999) (noting the distinction between “taking” and

carrying, or “asportation” for purposes of carjacking statute), which

cautions against reading “take” to require some form of absconding,

lest we “place in the statute language which is not there.” Leppo v.

State Highway Admin., 330 Md. 416, 423 (1993) (quoting Simpson

v. Moore, 323 Md. 215, 226 (1991)).

At the same time, we have not found any indication that the

General Assembly intended to use the term “take” in this legal,

technical manner instead of in its more common sense, meaning:

“[T]o get into one’s hand or into one’s possession, power, or control

. . . .” Webster’s Ninth New Collegiate Dictionary 1202 (1989).

Given that a reviewing court might well “approach the analysis of

the language from a common sensical, rather than a technical

perspective,” Motor Vehicle Admin. v. Chamberlain, 326 Md. 306,

315 (1992), superseded by statute on other grounds, as recognized

in Motor Vehicle Admin. v. Delawter, 403 Md. 243, 265 n.12 (2008),

we cannot say with confidence that an LPG company that excavates

a tank but leaves it on or adjacent to the customer’s property has

“take[n]” the tank within the meaning of the Container Law.

Nor does the Container Law reflect the kind of “clear purpose,”

Bonds v. Royal Plaza Cmty. Assocs., 160 Md. App. 445, 458 (2004)

(quoting River Birch Assoc. v. Raleigh, 326 N.C. 100, 109 (1990)),

that would compel it to be interpreted broadly. It could be argued

that the statute reflects a strong policy goal—public safety—that

supports a broad construction of the term “take” that would forbid

the movement of an LPG tank by anyone other than its owner, who

presumably knows best how to do so safely. However, when the

General Assembly enacted the Container Law, it had already

entrusted the regulation of combustible and explosive materials to

the Fire Commission and had already mandated the adoption of the

Fire Code, which addresses the proper handling of LPG tanks

without respect to ownership. This order of enactment suggests that

the Legislature did not intend the Container Law as a public safety

measure, but instead “generally intended to regulate trade and

commerce,” as the code revision commission concluded.

Commission Report No. 175-1 at 8. In the absence of meaningful

legislative history suggesting otherwise, we are unable to discern a

Gen. 136] 149

clear purpose that would compel an expansive, remedial

construction of the law.

Rather, we think that the one interpretive rule that clearly

applies here—the rule of lenity—weighs against a broad

construction of “take” or “dispose of.” Under the rule of lenity,

“courts will not extend the punishment to cases not plainly within

the language used [by the Legislature].” Jones v. State, 304 Md. at

220 (citation and quotation marks omitted); see also Walker v. State,

432 Md. 587, 627 n.26 (2013) (describing the rule as an aid to

resolving an ambiguity in a criminal statute). Given that rule, we

cannot say that the new supplier’s movement of a tank “by the side

of the road” with the consent of the customer falls plainly within the

language used by the Legislature when it prohibited the “taking” or

“disposal of” of a marked tank without the owner’s written consent.

3. The Statute’s Evidentiary Presumption

Although the rule of lenity counsels against finding that this

type of conduct is proscribed by the Container Law, we must

consider whether the evidentiary presumption established by CL

§ 11-604(2), which is triggered by a person’s “possession” of a

marked container, would make it any easier to prosecute the supplier

for “disposing of” or “taking” the other company’s tank. In our

view, the presumption would not change the conclusions we reach

above.

At first glance, it would seem that a supplier who picks up an

underground storage tank with heavy equipment has “possession”

over it; the supplier has acquired a degree of control over the tank

and is exerting that control, and “control” over a thing has long been

deemed “possession” of that thing. See, e.g., Polansky v. State, 205

Md. 362, 366 (1954) (stating that possession occurs “as soon as one

obtains a measure of control or dominion over the custody of the

goods”). However, as explained by the Court of Special Appeals,

not every act of control over a thing rises to the level of “control” or

“possession” of it. Burns v. State, 149 Md. App. 526, 551

(2003). Instead, “possession generally contemplates something

more by way of continuing and exclusive exercise of dominion and

control over property than is required to show that a defendant was

merely a participant or joint possessor in some variety of prohibited,

but possibly short-lived, behavior.” Id. Whether the supplier has

acquired enough control over the tank to be deemed to “possess” it

for the purposes of the evidentiary presumption may again depend

on whether the supplier was merely leaving the tank on the

150] [98 Op. Att’y

customer’s property for the customer’s disposition, or, instead,

exercising a continuing and exclusive dominion over it by removing

it from the customer’s possession. In our view, then, the

presumption adds little to how the statutory scheme applies to the

scenario you describe.

In any event, the existence of the presumption would not

excuse the prosecution from proving the acts of taking or

disposal. Graham v. State, 151 Md. App. 466, 483 (2003)

(explaining that “a mandatory presumption” still requires that the

jury be “instructed that the presumption was rebuttable and that it

did not shift the burden of persuasion to appellant” (emphasis in

original)). Although we believe you have arguments available that

would allow you to charge such acts, the considerations described

above—the lack of a statutory definition of the operative terms, the

absence of meaningful legislative history, and the application of the

rule of lenity—suggest that a charge under this statute might be

difficult to prove when the new supplier has left the tank in a readily

accessible location on, or immediately adjacent to, the customer’s

property.

B. Leaving a Partially Filled LNG Tank “By the Side of the

Road” May Constitute a Criminal Violation of Other Laws

Relating to Public Safety.

We are quick to add, though, that other public safety laws may

prove a more effective means of prosecuting the conduct you

describe. Section 6-317 of the Public Safety Article, for example,

prohibits the alteration, maintenance, or use of equipment or land in

a way that “endangers life or property due to the hazards of fire or

explosion.” PS § 6-317(a)(1). The actions you describe may also

violate the NFPA 58 standards for the storage, handling,

transportation, and use of LPGs, which have been adopted into the

Maryland Fire Code. COMAR 29.06.01.06 (incorporating NFPA

Fire Code 1 (2012 ed.) by reference); NFPA Code 1, §§ 2.1, 2.2

(incorporating NFPA 58, Liquefied Petroleum Gas Code, by

reference). The Fire Code “has the force and effect of law in the

political subdivisions of the State.” PS § 6-206(a)(iii). The model

code provisions that might apply to the scenario you describe

include those that require most LPG tanks to be installed within

certain distances from dry grass and other combustibles, overhead

electrical lines, sources of ignition such as window air conditioners,

“public vehicular thoroughfare[s],” and “designated parking

locations.” NFPA 58, §§ 6.6.5.2, 6.4.4.3, 6.3.2.3, 6.6.6.1(B),

6.6.6.1(E), and 6.6.1.2; Annex J. Although these provisions are part

of the regulations for “installation” of LPG containers, courts may

conclude that they were intended to apply to the placement of

Gen. 136] 151

containers after their removal as well. If so, the knowing violation

of any of these provisions is a misdemeanor. PS § 6-601.

Depending on the circumstances, § 7-104 of the Criminal Law

Article might also apply; that theft statute provides that a person

may not exert unauthorized control over property if the person

“abandons the property knowing the . . . abandonment probably will

deprive the owner of the property.” CR § 7-104(a)(3). And a

supplier who knowingly places a leaking tank by the side of the road

or otherwise leaves it in a condition that “creates a substantial risk of

death or serious physical injury to another” could potentially be

prosecuted for reckless endangerment under § 3-204(a)(1) of the

Criminal Law Article. See Kilmon v. State, 394 Md. 168, 174

(2006) (guilt under the reckless endangerment statute does not

depend on “whether the defendant actually intended that his reckless

conduct create a substantial risk of death or serious injury”). Other

provisions of the criminal code might apply, as might the provisions

of subject-specific articles ranging from local littering and nuisance

ordinances to federal regulations on the safe transport of LPGs. The

many prosecutorial choices offered by these laws suggest that there

is likely little need to read the Container Law expansively.

III

Conclusion

Depending on the circumstances, the Container Law might

provide a route to prosecuting an LPG supplier for leaving a tank

“by the side of the road” in a place beyond either the customer’s or

owner’s control. However, given the lack of statutory definitions of

the operative terms of the Container Law, the absence of meaningful

legislative history, and the rule of lenity, the Container Law likely

would not provide the most direct path for prosecuting a supplier for

that conduct. In cases where the supplier leaves a partly-filled

propane tank in a place where it might be hit by traffic, vandalized,

or otherwise damaged, prosecution for reckless endangerment under

§ 3-204(a)(1) of the Criminal Law Article may be the best response,

as might a prosecution under the Public Safety Article, which

incorporates the extensive State Fire Code regulations on the

handling of liquefied propane gas.

Douglas F. Gansler

Attorney General

D’Arcy Talley

Assistant Attorney General

Adam D. Snyder

Chief Counsel, Opinions & Advice